summary dismissal - gross misconduct. procedural errors?

[Castor23]

Hi, looking for some advice as I cannot find much in or documents or online.

My friend was dismissed for gross misconduct relating to two incidents. I feel he has an excellent case although due to the nature of the business I doubt it be overturned at appeal.

One reason was a comment made to a senior manager. For which the only evidence is the managers statement. The comment, although not offensive, was a nickname related to something offensive. I feel they have not followed their own procedures as they have not fully investigated the facts. There was another person present who has not been asked for a statement or asked about the incident. The statement from the manager is also not completely truthful.

The other is a performance issue. But in the disciplinary hearing there is no evidence of such poor performance. He is asked about his mood and whether he thinks it affected other staff and he says no and asks why noone complained. All questions he asks are ignored. Then at the end of the hearing he is dismissed but no reference to his answers or how they came to the decision. It is as if he was dismissed before the hearing.

The notes were altered many times by the note taker and the changes have not been initiated by the employee as I have made them do in hearings I have been note taker for. The hearing notes are not signed by employee and he claims he never saw them or had them read to him.

They have also told him he cannot have a copy until the appeal.

All seems wrong to me, but I can't find anything in writing....

[Eloise01]

Re: summary dismissal - gross misconduct. procedural errors?

The reason why you cannot find anything in writing is because, in law, these are not procedural errors. The matters you raise are largely matters of opinion, and so it does not follow that there is an excellent case.

With regard to the managers statement: the employer is entitled to determine who they believe when there are two statements of opposing evidence (assuming he denies using the word). There is no point in arguing semnatics about whether the word was offensive or not - if it was a nickname that related to something offensive, then it was offensive; and certainly entirely inappropriate language to use to your manager. Whilst assuming that he is denying it (because if he admits it then he is guilty!), I am going to have to take that to be a lie, since you say that the statement from the manager is not "completely" truthful, which pretty much says that it is mostly truthful! So there's a possible suggestion here that the kettle of calling the pot black there. What is the truth is a matter of opinion - the employers opinion obviously differs from yours. As does their opinion of whether they have fully investigated it. In terms of a tribunal, the other person present not being asked for a statement is of minor consequence, unless that person is willing to provide a written statement and appear as a witness to say, under oath, that your friend did not say what they are accused of saying. Even were that true, it is a brave employee who gives evidence against their own employer; and a maive one who expects there to be no consequences of that. And equally leaves it open for the question to be asked that, if this employees evidence would exjonerate him, why didn't he get a statement from them?

The second £incident" is rather vague here, nut appears to be directly related to the first - it is about the manner in which his conduct impacts on other people. On this amount of detail, all I can comment is that someone complained because the employer is complaining! It wouldn't ever have come to their attention if there was no complaint about it.

An employer does not have to prove that something is true. The standard to which they are held is that they must show that they have a reasonable belief that something is true; and then, in the case of dismissal, that a dismissal is within the range of outcomes that a reasonable employer would consider. Given that we are talking about offensive language to a manager, I would have to say that if the first can be demonstrated, the second naturally follows as correct - a "reasonable employer" would consider dismissal if offesnive language were used to a manager.

There is no requirement for the notes or any changes to be signed or initialled. It may be good practice, but not a requirement and certainly not one that all even many employers follow.Nor is there any legal requirement to read them to him. You allege that the notes have been changed - what evidence do you have of that, because without evidence it is his word against theirs. I do agree that the notes should be provided before the appeal as they form part of his defence, and he should tell them that he requires them to prepare his argument for appeal - but again there is nothing in writing in law about this, and this alone would be unlikely to be sufficient cause for a verdict of unfair dismissal.

[Castor23]

Re: summary dismissal - gross misconduct. procedural errors?

Pmd for details

[Eloise01]

Re: summary dismissal - gross misconduct. procedural errors?

I have explained to the OP that the site convention does not support advice by PM, and in this case, I broadly do not think there are any real circumstances to support going off the thread. The details which may identify the OP and/or their friend have been ommitted from my response, and knowing these would not significantly impact on the advice I would give.

The fact that someone has worked for an employer for a long time with no previous disciplinaries is not relevant - there is always a first time! Previous good behaviour or good conduct may be accepted by an employer as mitigation - but it is wholly and completely irrelevant in law and the employer does not have to accept mitigation. A tribunal will not consider mitigation at all. Tribunals do not "re-hear" cases and come to their own conclusion - they consdier the facts of the dismissal and decide whether it meets the standard the law sets, and that is all.

I think it was fairly evident from the original post that there was a reason why the OP knew so many of the details of the case, and what that reason might be. The bottom line is that your statement would not help your friend - all it would do is confirm the conduct! Unless, of course, you are willing to lie for your friend (and if it came to a tribunal, lie under oath to a court). I must however refer you back to what I said previously - what you consider a "full" investigation is not the same as what your employer might consdier as one. The fact that you were not interviewed does not mean the investigation wasn't fully completed - it was completed to the satisfaction of the employer, and that is all that counts. They are the ones who will, if necessary, face a tribunal, so their position is what they say it is, and your friend was responsible for his defence if he felt that this was a relevant defence fact. However, this is somewhat moot, is it not, since your truthful statement would confirm that your friend said what he is accused of? This piece of information, that you were not interviewed, will not help him at a tribunal. It might have helped if you were going to appear as a witness for him and say that he didn't say it - but that is only a might, and to do so that would mean you commiting prejury, which is a criminal offence. It might be difficult to prove that you are lying (assuming you were willing to do so), but are you prepared to take that risk?

The phrase used was most certainly inappropriate language to use to a manager about another manager. Whether it constitutes gross misconduct, in the end, will have to be the determination of a tribunal. It is that test about whether a reasonable employer might have considered this outcome (not whether they would have dismissed, but whether they might have considered dismissing). My view is that the likely answer is that they would, but that is a best guess - nobody could tell you what a tribunal will decide with certainty on an issue such as this. Combined with a recent history of issues about attitude at work, improved or not (because this incident would suggest there was still a problem with attitude), I would say that there is a very good chance that a tribunal would decide in favour of the employer.

As I said, these are best guesses based on the information you have provided, but it is far from the excellent case that you thought.